The Defence of Due Diligence in Occupational Health and Safety Matters

In the world of Occupational Health and Safety Act (“OHSA”) violations, the Crown (the Ministry of Labour) essentially only has to prove that the act or incident occurred. Given that charges are usually laid only where an accident has taken place, proving that an act contrary to the OHSA has occurred is usually not difficult to do. There is no mens rea or intent required, as would be the case for any criminal conviction. Your motives can be innocent but if the act occurred, the Crown’s burden has been met.

The only defence thereafter is that of due diligence. Due diligence is proving that you took all reasonable and required steps to ensure that your company is complying with the OHSA, and/or that your company is ensuring that the incident in question would not occur.

The Crown generally takes the position that specific due diligence is required for the act complained of, and that this due diligence is rarely, if ever, acceptable to the Crown. In other words, the Crown requires that you prove that all steps were taken to ensure that the specific incident was prevented.

What’s the choice? You can either plead guilty and accept the joint submission on sentence or run a trial with the cost and risk associated with it.

Practitioners like me have long felt the odds are stacked against the contractor in trying to establish due diligence to the satisfaction of the court. I am pleased to say it can be done.

The key is always to have written policies and procedures that help ensure the OHSA and Regulations are complied with. This is not enough, however.

As found in the recent case R. v. Morin Brothers Building Supplies Inc., (“Morin”) written policies are not sufficient to be successful with a defence of due diligence. They must be implemented with rigour and where people ignore or fail to follow these policies, they must be disciplined. Supervision and diligence is required. I was fortunate to have Morin as a client in this recent case of mine. Morin not only had the written policies in place but went the extra mile in training and updating its employees on these policies. Morin could also demonstrate a consistent pattern of discipline for those who did not follow the policies. Supervisors were present at all times during the period where work was being done.

Where such diligence can be established, as it was in the Morin case, the Court will and did acquit despite an accident that occurred causing a significant injury.

It is important to make use of all the safety tools available to you as a company, including Ministry approved courses and regular ongoing training and refreshers with respect to all potential hazards that your employees may face. Documenting this is essential. If an accident occurs, you will likely be charged and may have the cost and expense of defending yourself in Court and the cost that a penalty brings with it. However, if you establish and maintain a comprehensive due diligence regime, you can avoid a conviction that could give rise to punishing financial penalties. Morin was able to do so and you can too.  If you are convicted however, second and subsequent charges may give rise to even greater financial penalty.

Safety is simply good business as well as being the right thing to ensure at your workplace.